Philip Hensher: Why don't we put animals on trial?

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The Swiss love a referendum – there's always some poster in the streets advising you whether to vote for or against some occasionally bizarre proposition. A few months ago it was whether to allow minarets to be built. Yesterday, it was on the question of whether to allow animals to have their own legal representation in court.

Switzerland already has some very rigorous animal protection laws. If you want to own a dog in Geneva, where we live part of the time, you must pass a course ensuring that your dog is socialised, does not jump up at strangers or create a nuisance in other ways. Conditions for animals in the farming industry are some of the most generous in the world, and very strictly applied. The legal step under consideration has been brewing for some time. A case was brought by the canton of Zurich against an angler who spent more than 10 minutes landing a gigantic pike, which died, presumably, in some pain. Should animals have their own advocates?

My immediate thought was that if an animal can be represented in court by a lawyer, there seems no good reason why they should not be subject to prosecution, too. It would seem anomalous that a dog who is mistreated in the canton of Geneva should have his own lawyer and representation in court, but that if that dog bites a child – there are 15 breeds of dogs that you have to obtain special permission to keep in Geneva – it is the owner who gets prosecuted.

Direct prosecution of animals would not be a new thing. Pre-modern justice did not limit its attentions to human beings. In 1266, at Fontenay-aux-Roses, near Paris, a pig was tried for eating a child, and executed. In ecclesiastical courts throughout the period, animals were given their own legal representation, just as the Swiss now propose; for civil courts, in common with human criminals, this might not have been the case.

Prosecutions were launched against pigs and large domestic animals in quite large numbers – the effort of hanging a guilty horse must have been considerable. But occasionally it was thought worthwhile to prosecute rats, snails, weevils and locusts. The 16th-century jurist Bartholomew Chassenee is said to have argued in one case that more time was needed to notify the rats of France of the trial date, and that they could not be expected to face in court their mortal enemy, the cat.

Some very interesting books have been published on this extraordinary phenomenon. They make it plain that the Middle Ages and subsequent eras took these prosecutions entirely seriously, and went through the immense palaver of mounting a full-scale trial of a plague of mice. Often, prosecutions of people taken in the act of bestiality were paralleled with cases against the animal partner. In 1766, a man taken in a sexual act with an ass was sentenced to death; the ass was, unusually, pardoned because of a certificate from the commune of Vanvres, stating that in four years the ass had shown herself to be of virtuous habits.

Why on earth did they do this? Why should the Swiss now propose to bring a layer of legal representation into a matter which, after all, they've managed to run perfectly well until now?

I don't want to be cynical, but the thought does arise that a legal system which is happy to arrest, prosecute and sentence a dumb animal for a "crime", and a legal system which is keen to act as the advocate of a dumb animal whose welfare needs some protection have one thing in common: they were, or will be, paid for it. Just a thought.

Lessons in life from Jade's startling will

Jade Goody, the late star of reality television, left some £3m after a short, tumultuous career turning almost nothing into national recognition. The details of her will are startling in the degree to which she seems to have considered where, and in whom, the money would be best invested.

Her mother, who rode on her coat-tails, attaining a degree of fame herself, is left a mere £10,000. Her husband at the time of her death, who is currently awaiting trial on a charge of rape, is left nothing, but was given Miss Goody's last car at the discretion of the executors. The bulk of the fortune goes in trust to her two young sons, and paying for their education outside the state system was evidently at the front of Miss Goody's mind.

Michael Gove, writing in this week's Spectator, comments on Miss Goody's evident native tidiness of mind and intelligence, and remarks that the state-education system let someone of her ingenuity and ambition down badly – no one doubts either her intelligence, or her almost incredible ignorance.

I wonder, though. What would have happened to her, had she gone to a well-run school, and come out with the GCSEs and A-levels she was undoubtedly capable of? She would probably have become a barrister, and died while she had just achieved a tenancy, unheard of and mourned by her family alone. Michael Gove has a good general point about a lost generation; Jade Goody's case was probably a unique one, however.

Sex, ties and police tape in rural England

The people of Lee Mill, Devon, sound perfectly appalling to me. They overheard "strange noises" coming from the house of one of their neighbours. Instead of turning up the sound on Deal Or No Deal, as normal people would, they telephoned the police, who turned up.

The police were mistakenly invited in by the tenants, and soon discovered that the new inhabitants had installed what they termed a "sex dungeon" in their spare bedroom. Detective Sergeant Stuart Gilroy said, before displaying his finds, that "we were not expecting to find a masochistic dungeon in sleepy Lee Mill". Most shocking of all, this suburban Sadeian boudoir was, we are told, "near a Tesco supermarket".

The technical crime is conspiracy to run a brothel. But I've read this from top to bottom, and for the life of me I can't see what business it is of the Devon Constabulary, or of the repulsive curtain-twitchers of Lee Mill, whether their neighbours have a sex dungeon, a model railway layout or a collection of interbellum piano accordions stashed in their spare rooms.

I suppose if the tenants had continued their error, and insisted on whipping DS Gilroy, they would be regarded as having committed an assault by mistake. Otherwise, it all seems jolly harmless to me. The ghastly DS Gilroy said: "We are glad to have disturbed this activity and restored normality to the neighbourhood." Is he sure about that? Is he proposing to issue certificates of "normality", as judged by the junior officers of the Devon Constabulary?

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